Tomorrow I will be participating in the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests." Jeffrey Rosen, whose NYT magazine article "Supreme Court, Inc." no doubt helped inspire the conference, will deliver the keynote address tomorrow afternoon. (We discussed Rosen's article on the VC here.) Additional speakers include litigators and academics including Tracey George (Vanderbilt), Pam Karlan (Stanford), and Vikram Amar (UC Davis), among others.
In my remarks I will raise questions about what it means to say that the Roberts Court is substantively "pro-business," and take a closer look at the various environmental cases decided by the Roberts Court. If the Court is meaningfully pro-business, one might expect that the Court would be hostile to environmental regulation or at least sympathetic to business challenges to regulatory measures. Yet no such tendency is visible in the environmental decisions rendered by the Roberts Court thus far. If there is evidence that the Roberts Court is "pro-business," the evidence must be found elsewhere.
I addressed the broader claim that the Roberts Court is pro-business in Part III of my response to Erwin Chemerinsky's article on the first three years of the Roberts Court. Chemerinsky argued that the Roberts Court has shown itself to be particularly pro-business, and here is a portion of my response.
Dean Chemerinsky is likely correct that, in important respects, the Roberts Court could be seen as "pro-business." But this is not because the Court has been particularly aggressive in striking down government regulation or erecting constitutional barriers to economic regulation. This is no pre-New Deal Court. Nor is the Court's apparent solicitude for business concerns particularly rigid or ideological. To the contrary, the results in most business law cases are quite lopsided, and rarely the result of an ideological division on the Court. In this area, 5-4 cases are the exception, not the rule. . . .I look forward to tomorrow's conference and (time-permitting) hope to blog some highlights.
Business-related cases appear to occupy a major share of the Roberts Court's shrunken docket -- over one-third of the cases accepted and argued in each of the past three terms. It also appears that business advocates have had a relatively successful run of late. In OT 2006, for example, the litigation arm of the U.S. Chamber of Commerce filed briefs in fifteen cases, winning thirteen. This may be evidence that the business community has tremendous influence on the Court. Or it may indicate that its attorneys are particularly good at picking winners and marshaling the organization's resources for those cases in which it can have the greatest impact.
Some call the Court "pro-business" because there is no crusading liberal or "progressive" justice on the Court. There is no justice ready to follow William O. Douglas' counsel to "bend the law in favor of the environment and against the corporations." But this, in itself, does not make the Court pro-business, particularly as there are no justices on the Court ready to do the opposite. Rather, most justices appear to approach the majority of business law cases as legal questions deserving of careful legal analysis and resolution in accordance with the dictates of law. With the exception of the punitive damages cases, the Court's business docket focuses on statutory matters in which Congress retains the upper hand. Most cases require the Court to interpret or apply and enforce legislative accommodations, and leave Congress ample room to correct course. . . .
To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government's power to regulate economic activity or to rewrite the law to favor business interests. . . . Rather, the Roberts Court can be called pro-business insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants.
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